Determining the width of a right-of-way may be more difficult than you think, even when the dimensions are specifically defined.  New York courts take the approach that elevates the right of passage over full use an easement described by deed.

Recently, in Grosbard v Willow Lane, LLC 192 AD3d 773 [2d Dept. 2021], the Second Department confirmed that a right-of-way for purposes of ingress and egress merely grants the dominant estate owner (easement holder) the right of passage over the servient estate (land owner), but not unfettered use of the entire easement area described in its deed.

In this case, the plaintiff’s property was burdened by an express easement that benefited the defendant’s property.  The easement, granted as part of a 1959 subdivision, was described in the deed as “an easement of right of way for ingress and egress over a Private Road 35 feet in width.”  The metes and bounds description were recorded.

In February 2014, the plaintiffs acquired their property.  In July 2014, the defendants acquired their property.  At that time, a dirt and gravel driveway, approximately 10 feet in width, provided access to defendant’s property.  Soon after their purchase, defendants began clearing a previously wooded section of the easement, moving the 10-foot-wide driveway to the eastern edge of the easement and then landscaping the remaining 25-foot section of the easement.  Litigation ensued.

The plaintiffs sought a judgement declaring that the easement area only entitled defendants to a reasonably necessary right of passage, and no right to widen the right-of-way. In their answer, defendants asserted a counter claim seeking, inter alia, a judgment declaring that they were entitled to utilized the entire width and length of the easement.

The Appellate Division, in affirming the trial court, concluded that although the easement provided for “ingress and egress over a 35-foot right of way,” over a portion of plaintiff’s property should be limited to the 10-foot roadway, since defendants failed to establish that driveway was inadequate for the expressly stated purpose intended by the grantee in creating the easement.  The court held that the grant of a right-of-way for ingress and egress over a defined easement is merely the “grant of a convenient way, within those limits.”

This brief ruling reaffirms the balance between landowner’s rights and an easement holder’s right of passage.

 

 

In Riedman Acquisitions, LLC v Town Bd. of Town of Mendon, 194 AD3d 1444, 2021 NY Slip Op 02952 [4th Dept 2021], the Appellate Division, Fourth Department, addressed several significant issues concerning land development projects: (i) reversionary zoning, (ii) mandatory and discretionary site plan review, (iii) sewer agreements, and (iv) due process and equal protection rights. Ultimately, the Court ordered the Town of Mendon (“Mendon”) Town Board to consider the developer’s preliminary site plan.

A. Factual Background

Petitioner-Plaintiff Ryan Homes, Inc. (“Ryan Homes”) proposed to develop a patio home community on an 87-acre parcel situated within Mendon (“Project”). Ryan Homes commenced development of the in 2004 when Ryan Homes submitted a series of conceptual sketch plans to the Mendon Planning Board. Due to the Project’s high density, Ryan Homes sought and obtained rezoning of a majority of the parcel from Residential Agricultural-5 Acres (“RA-5”) to Planned Unit Development (“PUD”). The Project would also require a sewer connection.

In 2005, the Mendon Planning Board approved the Project’s preliminary site plan. In September 2006, Mendon and the Town of Pittsford (“Pittsford”) entered into a Sewer Transmission Agreement and Maintenance Contract (“2006 Sewer Agreement”) to connect the Project to the Pittsford’s sewer system. Pursuant to its terms, the 2006 Sewer Agreement would continue in full force and effect for 40 years, and could only be changed, modified or amended by mutual assent.

Five years later, in 2011, the Mendon Planning Board granted final approval for the first phase of the Project – subject to conditions which, if not met by Ryan Homes, would result in the approval’s expiration. After Ryan Homes obtained several extensions of time to suffice these conditions, in April 2015, Ryan Homes announced it would not proceed with the Project due to economic infeasibility. In December 2017, however, Petitioner-Plaintiff Riedman Acquisitions, LLC (“Riedman,” together with Ryan Homes, “Petitioners”) purchased the parcel from Ryan Homes with the intent to revive the Project. Petitioners requested confirmation from the Mendon Town Board and Mendon Planning Board that the parcel remained zoned for PUD, and that revisions would be submitted for approval under former Mendon Town Code (“Code”) Section 200-17(G) (governing requests for changes to sketch plans).

Around the same time, the Mendon Town Board Supervisor unilaterally declared the 2006 Sewer Agreement null and void, and asked Petitioners for a new agreement. Petitioners, the Mendon Town Board and Pittsford attempted to negotiate a new agreement (“2018 Sewer Agreement”). In June 2018, the Mendon Planning Board issued a favorable report on Petitioners’ revised sketch plans – conditioned on approval of the 2018 Sewer Agreement. In July 2018, however, the Mendon Town Board concluded the parcel’s zoning reverted to RA-5 because the PUD zoning had been conditioned on sufficing the conditions of approval, which deadline expired in 2015.

Petitioners objected to the Mendon Town Board’s conclusion regarding reversion, and argued the parcel’s rezoning was unconditional and that Petitioners were never warned about the possibility of reversion. Petitioners also requested the Mendon Town Board approve the 2018 Sewer Agreement. In August 2018, the Mendon Town Board amended the Code to remove PUD zoning and, in January 2019, voted against the 2018 Sewer Agreement. The Mendon Town Board took no further action on the Project’s revised application.

B. Petitioners’ Hybrid Action-Proceeding, and Judgment

Petitioners commenced this hybrid action-proceeding challenging the Mendon Town Board’s failure to consent to the Project’s revised application, removal of PUD zoning from the Code, termination of the 2006 Sewer Agreement, failure to approve the 2018 Sewer Agreement, and determination that the parcel was no longer zoned for PUD. Petitioners also sought damages and attorneys’ fees pursuant to 42 USC 1983 and 1988 for violations of due process and equal protection.

 The Supreme Court, Monroe County, granted Petitioners’ petition-complaint in-part, and issued a judgment which, among other things, (i) declared the parcel remained zoned for PUD, (ii) annulled the amendment of the Code to remove PUD zoning,[1] (iii) directed the Mendon Town Board to review Petitioners’ revised application under the Code that existed at the time of submission, (iv) vacated the Mendon Town Board’s rejection of the 2018 Sewer Agreement as arbitrary and capricious, (v) determined the Mendon Town Board improperly terminated the 2006 Sewer Agreement, and (vi) granted Petitioners attorneys’ fees. The Mendon Town Board appealed from judgment, and the Appellate Division modified.[2]

C. The Appellate Division’s Decision

The Appellate Division affirmed the Supreme Court’s determinations holding the parcel remained zoned for PUD, the Mendon Town Board must review Petitioners’ revised application, and that the Mendon Town Board improperly terminated the 2006 Sewer Agreement. The Appellate Division, however, disagreed with the Supreme Court regarding the 2018 Sewer Agreement and the award of attorneys’ fees.

1. The Parcel’s Zoning Did Not Revert

The Appellate Division rejected the Mendon Town Board’s claim that the parcel automatically reverted from PUD to RA-5 when Ryan Homes ceased working on the Project. Zoning regulations must be strictly construed against the municipality, and any ambiguity must be resolved in favor of the property owner. The zoning instruments (e.g. ordinance, zoning map, etc.) must clearly set forth the possibility of a parcel’s automatic reversion to a prior designation. When deciding whether zoning instruments contain the requisite clear language, Courts construe the entire ordinance as a whole, reading all of its parts together to determine the legislative intent and avoid rendering its language superfluous. Even where automatic reversion language is clear, notice and a public hearing are required before the reversion may be confirmed by the legislative body.

Here, the Appellate Division concluded the parcels’ zoning never automatically reverted because the zoning instruments did not contain any express language warning Petitioners that the PUD zoning would automatically revert if certain conditions were not met. Specifically, neither the ordinance rezoning the parcel from RA-5 to PUD nor the local law which effectuated the parcel’s zoning change on the zoning map expressly mentioned the possibility of automatic reversion. Accordingly, Petitioners were not sufficiently placed on notice of the possibility, so the parcel did not automatically revert to RA-5, and remained zoned for PUD.

2. The Mendon Town Board Must Review the Revised Application

The Appellate Division affirmed the Supreme Court’s decision to compel the Mendon Town Board to review Petitioners’ revised application because, under the applicable Code provision, the Mendon Town Board’s action is mandatory, not discretionary, and Petitioners had a clear legal right to the relief sought.

The applicable Code, former Section 200-17(G), provided, “if, in the site plan development, it becomes apparent that certain elements of the sketch plan are unfeasible and in need of significant modification, the applicant shall then present a proposed solution to the Planning Board as the preliminary site plan.” The Code also provided that, after a proposed solution is approved by the Planning Board, it shall so notify the Town Board, at which point the preliminary site plan approval may then be given only with the consent of the Town Board.

The Mendon Town Board argued it was not required to review Petitioners’ revised application because Petitioners did not submit it to the Mendon Town Board in the form of a preliminary site plan, but rather as a sketch plan. Petitioners argued the Mendon Planning Board issuance of a favorable report on their revised sketch plans in June 2018 required the Mendon Town Board to review the revised application.

The Appellate Division held the Code was ambiguous, resolved the ambiguity in favor of Petitioners, and held, under former Section 200-17(G), Petitioners’ revised sketch plans submitted to the Mendon Planning Board effectively served a preliminary site plan. Further, upon the Mendon Planning Board’s issuance of a favorable report, the Mendon Town Board became obligated to review Petitioners’ revised application for approval; Petitioners were not required to submit a whole new preliminary site plan for review. Therefore, the Mendon Town Board had a clear, nondiscretionary obligation to consider the Mendon Planning Board’s favorable report and Petitioners’ revised application.

Notably, former Code Section 200-17(J) set forth procedures for submitted a revised application. The Appellate Division, however, held the Mendon Town Board was estopped from denying that former Code Section 200-17(G) applied because of the Mendon Town Board’s failure to dispel Petitioners’ reasonable belief that the latter section governed consideration of their revised application.

3. The 2006 Sewer Agreement Remains in Full Force and Effect

The Appellate Division affirmed the Supreme Court’s holding that the 2006 Sewer Agreement was not properly terminated.[3] The Appellate Division noted clear, complete writings should be enforced according to their terms, and, where the language of a contract is clear and unambiguous, interpretation of the contract and construction of its provisions are questions of law; Courts must ascertain the intent of parties from the plain meaning of the language employed, and give the terms their plain, ordinary, popular, and nontechnical meanings.

Here, the 2006 Sewer Agreement clearly and unambiguously provided it shall continue in full force and effect for 40 years and shall not be changed, modified or amended without a writing duly made, executed and acknowledged by the parties or their successors-in-interest. Therefore, Mendon could not unilaterally terminate the 2006 Sewer Agreement, it remained in full force and effect, and it allows the Project to be connected to Pittsford’s sewer system.

4. The Mendon Town Board’s Decision Not To Approve the 2018 Sewer Agreement Was Not Arbitrary and Capricious

The Appellate Division modified the Supreme Court’s vacatur of the Mendon Town Board determination not to approve the 2018 Sewer Agreement. Initially, the Appellate Division found the Mendon Town Board’s determination not to approve the 2018 Sewer Agreement was an exercise of its legislative power under N.Y. Town Law Section 64(6) – not an administrative decision (e.g. not subject to an Article 78 challenge); however, its validity was subject to review by virtue of Petitioners’ plenary action for declaratory relief vis-à-vis the determination.[4]

In evaluating the validity of the Mendon Town Board’s determination not to approve the 2018 Sewer Agreement, the Appellate Division analyzed whether the determination was arbitrary and capricious. The Appellate Division held the Mendon Town Board’s determination was not arbitrary and capricious because, in light of its general power to execute and award contracts on behalf of Mendon, the Mendon Town Board could decide that it did not want to purchase sewer services from a neighboring town.

5. No Attorneys’ Fees; Failure to Show Violations of Substantive Due Process or Equal Protection

The Appellate Division also modified the Supreme Court’s decision to award attorneys’ fees pursuant to 42 USC 1983 and 1988 for violation of Petitioners’ rights of substantive due process and equal protection.[5] Attorneys’ fees are recoverable under 42 USC 1983 and 1988 where relief is sought on both State and Federal grounds, even where relief is awarded only on State grounds.

In the land use context, 42 USC 1983 protects against municipal actions that violate a property owner’s right to due process and equal protection. Attorneys’ fees may be awarded if the constitutional claim is substantial and arises out of a common nucleus of operative facts as the State claim. The Appellate Division held Petitioners’ were not entitled to attorneys’ fees because their federal due process and equal protections claims were insubstantial.

i. Petitioners’ Failed to Establish a Substantive Due Process Claim

There is two-part test for substantive due process violations. First, the plaintiff must establish a cognizable property interest (i.e. vested property interest), or more than a mere expectation or hope to obtain approval (i.e. a legitimate claim of entitlement to obtain approval; virtually assured approval). Second, the plaintiff must establish governmental action was wholly without legal justification. Here, the Appellate Division held Petitioners failed to show certainty or a very strong likelihood that their application would have been granted. The Mendon Town Board retained significant discretion in ultimately approving or denying the Project, so Petitioners did not have clear entitlement to approval. The Appellate Division declined to reach the second part of the test.

ii. Petitioners Failed to Establish an Equal Protection Claim

Violation of equal protection also have a two-part test. First, the plaintiff must show selective treatment as compared to others similarly situated. Second, the plaintiff must show such treatment is based on impermissible considerations (e.g. malicious or bad faith intent to injure a person). Here, the Appellate Division held Petitioners failed to establish the parcel and the Project were similarly situated to any other property within Mendon. Accordingly, the Appellate Division found Petitioners’ substantive due process and equal protection claims were insubstantial, and were not entitled to attorneys’ fees.

D. Conclusion

Riedman navigates the complex nuances of land development projects, and provides noteworthy insights for interpreting and understanding municipal regulations and actions.

[1] The Appellate Division noted that because the Mendon Town Board did not argue on appeal against the Supreme Court’s nullification of the Mendon Town Board’s recodification of the Code to remove PUD zoning, PUD zoning is currently permitted by the Code. Accordingly, the Appellate Division held the Mendon Town Board’s argument that the Supreme Court erred in determining Petitioners revised application should be reviewed under the Code existing prior to recodification was rendered academic.

[2] The Supreme Court issued a supplemental judgment awarding Petitioners $41,090.00 in attorneys’ fees. The Mendon Town Board appealed form both judgments.

[3] The Appellate Division noted the Supreme Court’s judgment did not declare the rights of the parties with respect to the 2006 Sewer Agreement, so the Appellate Division modified the Supreme Court’s judgment by declaring the 2006 Sewer Agreement was not properly voided and remains in full force and effect.

[4] The Appellate Division noted that, ordinarily, the failure of a legislative body to exercise its powers is not subject to the review in the courts.

[5] The Appellate Division modified appeal from the judgment and reversed the supplemental judgment.

Local Law 97 of New York City’s Climate Mobilization Act (the “Act”) is the City’s aggressive greenhouse gas emission reduction plan for buildings.  The City has published figures indicating that approximately 70% of greenhouse gas emissions are attributable to the City’s building stock.  The Act sets lofty emission reduction goals for existing buildings, with emission limits that become stricter over time.  Failure to comply with the Act, either in reporting building emissions or achieving emission limits could result in harsh penalties. Compliance with the Act, through benchmarking and implementation of emission reducing retrofits, will come at an initial capital expenditure for building owners (and potentially tenants).

The Act, which was signed into law on Earth Day 2019, establishes ambitious greenhouse gas reduction goals for covered buildings.  Specifically, the Act seeks a 40% reduction in 2030, and 80% by 2050 in carbon emissions (relative to 2005 levels) through mandatory building emission limitations effective in 2024, 2030, and 2035.

The Act generally applies to buildings that exceed 25,000 square feet, with increased thresholds for certain multi-building lots and condos, and exemptions for certain building classes and uses.  The Act is estimated to impact between 40,000 and 50,000 buildings, comprising approximately 60% of the City’s square footage.

In 2024, the Act will require building owners to reduce emissions below a specific annual carbon emission limit.  An individual building’s carbon emission limit is calculated using prescribed building use/occupancy factors and the specific building’s square footage.  Covered buildings will be required to report certified emission reports by May 1, 2025 and each May 1st thereafter.  Failure to meet the yearly emission limit will result in fines of $268 per ton over the building’s annual emission limit.

In addition to retrofitting and other efficiency measures, the Act authorizes the use of renewable energy credits (“RECs”) to off-set greenhouse gas emissions.  However, the Act limits qualifying RECs to those that are generated in, or deliverable to, the City’s electric grid.  This limitation significantly compromises the use of RECs as a compliance tool due to the current lack of a compliant REC supply and the incredible demand for such RECs anticipated to be triggered by the Act.

In response to concerns related to the anticipated financial burden imposed on building owners and tenants by the Act, the State as part of its 2022 budget proposal, attempted to expand the availability of compliant RECs to those generated at renewable energy projects outside of the City.  The proposal failed after interest groups advocated that expanding the availability of RECs beyond those tied to the City would frustrate the purpose of the Act.  Despite the ultimate failure, the proposal signals the search for potential relief measures.  As the May 1, 2025 certified emission reporting deadline looms, it will be interesting to see whether any relief to the Act can be agreed upon.

In May, the New York City Department of Buildings released its NYC Sustainable Buildings website touted as a one-stop shop for owners and property managers of buildings covered by the Act.  The website links to certain financing and technical tools to assist in reducing the compliance burden imposed by the Act.

For more information regarding the Act, please contact your local Farrell Fritz team of land use, environmental and real estate attorneys and professionals.

 

The Suffolk County legislature is currently considering a bill (I.R. 1478-2021) that would provide towns and villages with a greater opportunity to weigh in on certain zoning applications proposed in adjacent municipalities as part of the formal County review process pursuant to General Municipal Law § 239-m and Article XIV of the Suffolk County Administrative Code.  The proposed legislation is in response to public interest in large-scale development projects with cross-border implications.

The bill, sponsored by Legislator Kara Hahn (D-Setauket), notes that towns and villages are currently required to refer certain zoning actions affecting real property lying within 500 feet of the boundary of any neighboring town or village to the Suffolk County Planning Commission for review and recommendation pursuant to state and county law.  In the case of proposed zoning laws and amendments, the Planning Commission is required to provide notice to the Clerk of the adjacent municipality and that municipality may interpose an objection.  Following a public hearing, the Planning Commission may vote to disapprove the proposed zoning legislation by a two-thirds vote of its members.  The proposed County legislation seeks to extend this process to other types of zoning actions

If adopted, no zoning ordinance or local law, special permits, variances in connection with single-family residences on lots which are not over 2 acres in size, subdivisions, or site plans adopted or approved by any town or village in the County would take effect unless said zoning action has been submitted to and approved by the Planning Commission. Upon submission of the zoning action to the Planning Commission, the Commission must promptly give written notice thereof to the Clerk of any town or village adjacent to the area which is the subject of the zoning action.  The zoning action will be deemed to have been approved unless, within 45 days after the same has been filed with the Planning Commission, a municipality adjoining the boundary involved interposes an objection by resolution of its policy-making body within 20 days of the date the action has been filed with the Planning Commission and a resolution disapproving it is adopted by a two-thirds vote of the Commission’s members after a public hearing.

Under the proposed law, the Planning Commission must give at least seven days’ prior written notice of any public hearing to the Clerk of the adjoining municipality and notify all County departments, offices and agencies, including the Clerk of the Legislature, who shall forward such notice to all County legislators.  Any County department, office or agency which possesses information related to such zoning action shall immediately forward such information to the County Planning Commission.

In the event that the Planning Commission renders a resolution disapproving the application, the referring municipality may decline to adopt the Commission’s resolution and approve the action as originally applied for, but only upon an affirmative vote of a majority plus one of the entire membership of the referring body that explicitly sets forth its reasons for not approving the Planning Commission’s resolution.

Proponents of the local law are likely to view the input from adjacent municipalities on significant land use matters as a step toward regional planning, which has proven to be successful in many states, but is virtually non-existent in New York.  Opponents of the law will perceive it as an affront to the concepts of home rule and self-governance that are deeply entrenched in our State constitution.

The proposed legislation presents a classic “what goes around comes around” situation for towns and villages in Suffolk County. On one hand, it would give municipalities an opportunity to voice their concerns and provide input on land use matters in adjacent municipalities. On the other hand, however, their own land use decisions would now be susceptible to criticism and opposition from neighboring communities.

The proposed local law is presently pending before the County legislature’s Economic Development, Planning & Housing Committee and, if approved by the Committee, will be subject to a public hearing before the full legislature.  Thereafter, if a majority of the legislators vote to enact the proposed law, it will be presented to the County Executive for his signature.

Due to delays resulting from the COVID-19 pandemic, as well as other factors, many municipalities across Long Island are experiencing significant backlogs of processing building permit applications.  In some towns and villages, applicants are waiting several months to obtain a building permit.  Currently, building permits can only be issued by local municipalities and their officials tasked with such duties.  However, lawmakers and other groups seek to change that.

Earlier this year, in an effort to expedite building projects and relieve municipalities of the permit backlogs, New York State lawmakers introduced a bill which would allow state-licensed architects or professional engineers to issue building permits.  Under the proposed law, before issuing a building permit, the architect or engineer would be required to certify that the work proposed in the application complies with the applicable fire and building codes.  In order to ensure compliance with the law, the bill also allowed for random audits of such applications.

The bill has received significant pushback, mainly from the union representing municipal employees tasked with issuing such permits.  Opponents cite safety issues as their main concern with the proposed law, but others argue that nothing in the bill jeopardizes safety.  First, proponents argue, that aside from the issuance of the building permit, the entire remainder of the process would not change—that is, projects would still need to pass building inspections and obtain other necessary approvals.  Next, proponents also argue that architects and engineers are well-versed in building code requirements and must certify compliance therewith, effectively risking their professional licenses if they grant an application for a project not up to code.

The law is not meant to be a permanent fix, as it would expire in 2024.  Rather, its goal is to alleviate the current backlogs of building permit applications currently burdening Long Island municipalities and applicants alike.  Further, in an effort to address some of the union’s concerns and protect municipal employees, the bill provides that cities, towns, and villages who allow architects and engineers to issue building permits under the law cannot eliminate existing municipal positions responsible for such duties.

Although it faced significant opposition when originally introduced, the bill currently remains in committee in the New York State Senate.  Keep an eye out for state lawmakers to reconsider the bill in the coming months.

A recent and alarming statistic shared by the Suffolk County Department of Health Services indicates that more than 80% of nitrogen found in Long Island’s surface waters is attributable to sewage. As if the idea of sewage constituents making their way into our lakes and bays isn’t concerning enough, the environmental impacts of nitrogen on water quality are as varied as they are serious.

It is widely accepted that high levels of nitrogen in surface water leads to algae blooms that can be toxic to animals and humans. Such is the case with blue-green algae that has been appearing more and more frequently in Long Island’s freshwater bodies. Swimming in or ingesting water contaminated with the algae can cause severe illness, neurological damage, and even death in severe cases. Pets are particularly susceptible to exposure and injury.

Even algae that is not toxic, such as brown tide, can be harmful in high concentrations because it depletes dissolved oxygen in water and blocks sunlight infiltration, both of which contribute to marine life die-off. Some may recall the series of fish die-offs in Riverhead back in 2015. Many commenters attributed those events to high concentrations of algae from sewage and correspondingly low levels of oxygen in the Peconic River.

In recognition of ongoing efforts to stem the tide of nitrogen flowing into our surface waters, Suffolk County has taken another step toward reducing the levels of nitrogen released into the environment from private, onsite sanitary systems. The new standards, approved by the Suffolk County Legislature and the Suffolk County Department of Health, largely affect Article 6 of the Suffolk County Sanitary Code. They take effect July 1, 2021, and apply to all applications submitted to the Office of Wastewater Management (OWM) after that date.

In their broadest terms, the new standards establish specified events that trigger the requirement for the installation of an “Innovative/Alternative Onsite Wastewater Treatment System” (aka I/AOWTS) in lieu of a traditional sanitary system, such as a septic tank or cesspool. The changes also expand the list of I/AOWTS technologies allowed for use on properties in Suffolk County, and modify the separation distance requirements for I/AOWTS generally, among other changes.

The triggers for the installation of an I/AOWTS are of paramount importance. In short, an I/AOWTS will be required for all “New Construction” and all “Major Reconstruction” projects. New construction for single-family residences includes:

  • Construction of a new residence
  • Knock-down and rebuild of a residence
  • Addition to or modification of an existing residence requiring the addition or modification of a sanitary system
  • The addition of bedrooms to greater than 5

New construction for “Other Construction” (i.e. commercial, multi-family, and mixed use) includes:

  • Construction of a new, detached structure that requires a sanitary system
  • Addition to or modification of an existing structure that requires the addition or modification of a sanitary system
  • A change of use requiring the installation of a sanitary system or increase in wastewater capacity

“Major reconstruction” is universally defined for both single-family and other construction projects as any project for which the cost of the project exceeds 50% of the market value of the existing structure. Whether a project is a Major Reconstruction is determined by comparing a design professional’s construction cost estimate with an appraisal of the existing building prepared by a licensed real estate appraiser. As of July 1, 2021, any projection for which a conventional septic system is proposed will require submission of OWM’s new “Verification of Major Reconstruction Certification” supported by a construction cost estimate and appraisal.

Triggers for Installation of an I/AOWTS for Single-Family Residence

  • Construction of a new residence
  • Knock-down and rebuild of a residence
  • Addition of one or more bedrooms to an existing residence and the number of bedrooms will exceed 5, unless more than 5 bedrooms were already approved pursuant to a prior OWM application
  • Major Reconstruction

Triggers for Installation of an I/AOWTS for “Other Construction” Projects (including commercial, multi-family and mixed use projects)

  • Construction of new commercial or industrial building
  • Addition to an existing commercial or industrial building requiring a new, expanded, or relocated sanitary system
  • Change of use that exceeds prior approved design flow
  • Major Reconstruction

There are, of course, exceptions to these rules, such as projects involving a residence or building within a proposed sewer district. Accordingly, all applications to OWM after July 1, 2021, must be compared against the new standards to determine (1) whether the project triggers the requirement for an I/AOWTS; and (2) whether an exception to the requirement applies.

On July 1, 2021, the date on which the new standards take effect, the Health Department will publish new guidance documents (Nos. 8 [amended], 38, and 39), covering the triggers for referral of a single-family residential project to OWM, and when an I/AOWTS is required; triggers for requiring I/AOWTS for “Other Construction” project; and guidelines for determining whether a project is a “Major Reconstruction”, respectively. OWM will also publish its new Verification form for Major Reconstruction projects.

In 2017, 8 Bayberry Rd, LLC submitted an application to the Zoning Board of Appeals of the Village of Bellport (“ZBA”) seeking several variances to convert an existing three-car garage into a squash court and work out area resulting in a new 23 foot high building in the front yard, ten feet from the side yard lot line and five feet from the front yard lot line. The neighbors, Debra and Stuart Abramovitz challenged the ZBA decision via Article 78 Proceeding.

The Supreme Court, Suffolk County, in Debra Abramovitz v. Zoning Board of Appeals of the Village of Bellport, Supreme Court, Suffolk County, Index No. 00273-2018, Hon. John H Rouse, June 11, 2018, ordered that the proceeding be transferred to the Appellate Division, Second Department for a determination pursuant to CPLR § 7804(g). CPLR 7804(g) states, “[h]earing and determination; transfer to appellate division. Where the substantial evidence issue specified in question four of section 7803 is not raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of the other objections does not terminate the proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced …” (emphasis added). CPLR § 7803 states the questions that may be raised in an Article 78 Proceeding with section 4 stating, “whether a determination is made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.” Therefore, when the question is raised as to whether an agency’s post hearing determination is supported by substantial evidence, it may only properly be raised in a certiorari proceeding when the agency’s findings of fact are challenged. See Mckinney’s Supplementary Practice Commentaries to CPLR §7804(g), Vincent Alexander, C7804:8, Transfer to the Appellate Division (2019). The Supreme Court noted the four points of error that the petition claimed including that; (i) the ZBA granted a use variance rather than an area variance, (ii) the area variance was significant and without basis in the record, (iii) the decision changed a front yard to a back yard which the ZBA should have considered a use variance, and (iv)  by granting the variance, the ZBA authorized the applicant to enlarge the degree of nonconformity of the prior non-conforming garage.

The Appellate Division, Second Department in Abramovitz, et al., v. Zoning Board of Appeals of the Inc. Village of Bellport, et al., Index No. 2018-12810, dated May 12, 2021, held that the Supreme Court erred in transferring the proceeding to the Appellate Division pursuant to CPLR 7804(g) but decided the proceeding on its merits in the interest of judicial economy. Specifically, the Court stated, “the Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804(g), since the determination to be reviewed was not made after a trial-type hearing at which evidence was taken, held pursuant to direction of law (see CPLR 7803[4]; Matter of Sasso v Osgood, 86 NY2d 374, 384; Matter of TAC Peek Equities, Ltd. v Town of Putnam Val. Zoning Bd. of Appeals, 127 AD3d 1216, 1216; Matter of Greencove Assoc., LLC v Town Bd. of the Town of N. Hempstead, 87 AD3d 1066, 1067-1068). Accordingly, the determination is not subject to substantial evidence review. Rather, the question before us is “whether the determination was affected by an error of law, or was arbitrary and capricious or an abuse of discretion, or was irrational” (Matter of Greencove Assoc., LLC v Town Bd. of the Town of N. Hempstead, 87 AD3d at 1067 [internal quotation marks omitted]; see CPLR 7803[3]; Matter of TAC Peek Equities, Ltd. v Town of Putnam Val. Zoning Bd. of Appeals, 127 AD3d at 1216-1217.”

Ultimately, the Appellate Division found that the ZBA determination granting the variances to allow for the squash court and work out area to be constructed had a rational basis. Noting the “broad discretion” and “great deference” afforded to Zoning Boards in granting area variances and interpreting the zoning code respectively, the Court found that the ZBA met the required balancing test and considered the relevant statutory factors.  Therefore, the Court upheld the ZBA determination.

Last month, the Appellate Division, Third Department, held the Mined Land Reclamation Law (“Mining Law”), as amended, does not preempt certain local zoning laws which prohibit mining. Specifically, in Town of Southampton v New York State Dept. of Envtl. Conservation, 2021 NY Slip Op 03351 [3d Dept 2021], the Appellate Division held the statute “clearly recognizes that the local laws of the municipality are determinative as to whether an application [for mining] can be processed.”

The Mining Law, as Amended

The Mining Law is codified in Article 23, Title 27, of the Environmental Conservation Law (“ECL”), and grants the New York State Department of Environmental Conservation (“NYSDEC”) broad authority to regulate the mining industry state-wide. To encourage sound mining, manage depletable resources, and assure reclamation of mined land, the Legislature enacted the Mining Law to adopt standard and uniform restrictions and regulations to replace a patchwork system of local ordinances.

Notably, in 1991, the Legislature amended (“Amendment”) the Mining Law  to prohibit a state agency from considering an application for a mining permit within counties with a population of one million or more which draw their primary source of drinking water for a majority of county residents from a designated sole source aquifer if local zoning laws or ordinance prohibit mining uses within the area proposed to be mined (ECL § 23-2703[3]).

Mining Operations, Applications, and the Settlement

Sand Land Corporation (“SLC”) is the owner and permittee of a sand and gravel mine located on a 50-acre parcel (“Property”) situated in the Town of Southampton (“Southampton”). Wainscott Sand and Gravel (“WSG”) is the operator of the mine. In 2014, SLC and WSG applied to the NYSDEC for a modification permit seeking a vertical and horizontal expansion of mining operations. In April 2014, the NYSDEC issued a negative declaration pursuant to the State Environmental Quality Review Act, but, in 2015, denied the permit application.

SLC and WSG requested a hearing to challenge the NYSDEC’s 2015 denial. An Administrative Law Judge issued two decisions: one in January 2018, regarding a procedural issue, and the other in December 2018, which denied the relief sought. Both decisions held the Amendment prohibited the NYSDEC from processing the permit applications because Southampton, located within Suffolk County, has a local law prohibiting mining.[1]

In September 2018, during the time period between the two decisions, the NYSDEC issued notice of an intent to modify to SLC and WSG – that it would modify the existing permit to require them to cease all mining activity other than reclamation. In October 2018, SLC and WSG submitted an application to the NYSDEC to renew the mining permit, and to modify the permit to increase mining depth by 40 feet.

In February 2019, the NYSDEC and SLC and WSG entered into a settlement agreement (“2019 Agreement”), whereby, among other things, the NYSDEC agreed to (i) rescind its notice to modify and (ii) issue a renewal permit for an expanded life of the mine boundaries, and (iii) process the October 2018 permit application to deepen the mine by 40 feet. In March 2019, the NYSDEC issued the renewal permit. Also in March 2019, the NYSDEC relied upon the 2014 negative declaration to issue an amended negative declaration with respect to deepening the mine, and, in June 2019, issued the modification permit to deepen the mine. Apparently, the NYSDEC interpreted the Amendment to apply only to new permits or permits seeking substantial modifications.

Petitioners’ Article 78 Proceeding and Appeal

In April 2019, Southampton, several civic organizations, and neighboring landowners (collectively, “Petitioners”) commenced an Article 78 proceeding seeking to annul the 2019 Agreement, the renewal permit, and the amended negative declaration. In June 2019, Petitioners filed a supplemental petition seeking to annul the modification permit. The Supreme Court, Albany County, dismissed the petition. Petitioners appealed, and the Appellate Division modified.

The Appellate Division considered Petitioners’ claims in the context of the Mining Law and Amendment. In order to assure uniformity in restrictions and regulations across the State, the Legislature included an express supersession clause, which provides that the Mining Law shall supersede all local laws relating to the extractive mining industry. However, the court noted that in Frew Run Gravel Prods., Inc. v Town of Carroll, 71 NY2d 126 [1987], the Court of Appeals distinguished between local laws which were superseded and those which were not. Local pertaining to the actual operation and process of mining were subject to the supersession clause, but other local laws fell outside the supersession clause’s preemption. To hold otherwise would curtail a town’s power to adopt zoning regulations and to decide whether a mining operation, like other uses governed by a zoning ordinance, should be permitted in a particular zoning district.

The Appellate Division also noted that, although Southampton prohibited mining, SLC’s and WSG’s operation is a preexisting, nonconforming use. While preexisting, nonconforming uses are constitutionally protected and permitted to continue (notwithstanding contrary provisions of an ordinance), such uses are considered detrimental to a zoning scheme, and overriding public policy aims at their reasonable restriction and eventual elimination.

Moreover, the court emphasized the Amendment to the Mining Law: “The [A]mendment is an outlier in a statute whose purpose is to promote uniformity, as it articulates a mandate directed at a specific geographic area – Long Island, where [Southampton] is located and where zoning laws prohibit mining.”

SLC and WSG, et al., argued that, per the NYSDEC’s interpretation, the Amendment applies only to new permits or permits seeking substantial modifications, and the 40-foot expansion within the existing mine footprint was immaterial because it did not request a horizontal expansion. Although the Supreme Court agreed and held an alternative characterization would be “nonsensical,” the Appellate Division disagreed.

When interpreting a statute, courts first turn to the text as the best evidence of the Legislature’s intent. Generally, a statute’s plain language is dispositive. The court held “[the Amendment] is not vague or ambiguous; it is concise and clear. Contrary to all other permit applications received by [the NYSDEC], an application received from an area protected under [the Amendment] must be put on hold until the status of the local laws is determined.”

The Amendment contains no qualifications on what type of permit must be put on hold – it applies to all applications. Courts cannot amend statutes by inserting words that are not there, and if the Legislature intended to limit the type of permit applications to which the Amendment applied, it would have done so. “After all,” the court noted, the Amendment “very precisely limited the geographic area to which it applies.”

The Appellate Division also held that, given the unambiguous text and the question of pure statutory interpretation, deference to the NYSDEC’s competence or expertise was not required; such a question depends only on an accurate apprehension of Legislative intent.

Here, the Amendment clearly recognizes the local laws of Southampton are determinative regarding whether applications can be processed. Southampton’s zoning ordinance prohibits mining, and so the NYSDEC cannot process the application – let alone issue the permit. Therefore, the NYSDEC’s act of issuing the permits contravened the Amendment and, as such, was arbitrary and capricious.

[1] The Court noted in a footnote that it is undisputed Suffolk County is an area with a population of over one million that draws its primary drinking water from a sole source aquifer.

In 2018, the Federal Communications Commission (“FCC”) issued an Order governing the installation of small cell nodes and other telecommunications facilities in an effort to speed up the deployment of the newest generation of wireless technology known as 5G.  A small cell node typically consists of a single small antenna and related accessory equipment placed on existing utility poles or street lights within public rights-of-way.  The FCC Order was intended to remove state and local government barriers to 5G deployment by, among other things, providing providers with easier access to existing infrastructure in public rights-of-way.  It also limits the amount of fees that can be imposed for use of public rights-of-way and requires municipalities to adhere to the shorter timelines or “shot clocks” for the processing of applications.  However, the Order preserves a local community’s ability to manage and protect local land-use interests by allowing objective and reasonable aesthetic regulations that are no more burdensome than those applied to other types of infrastructure deployments.

While some municipalities have laws that regulate telecommunications facilities, most apply only to antenna towers and other macro cell sites – not small cells. As service providers seek to install the small cells needed to support their new 5G networks, local governments are reacting by adopting new laws to regulate small cells.  Several Long Island communities recently enacted legislation seeking to regulate small cells and related wireless telecommunications equipment in public rights-of-way to the maximum extent permitted by law.  The Town of Huntington is among the latest communities to do so.

In March 2021, the Huntington Town Board adopted Local Law No. 15 of 2021, upon a determination that it was in the best interests of town residents to establish standards for the location of wireless telecommunications facilities that are consistent with the latest federal and state laws, statutes, rules and regulations in order to protect the health, safety and welfare of the Town.  The new law recognizes that it is in the best interests of residents to provide them with access to wireless telecommunications technologies, while at the same time protecting natural features, aesthetics and the character of residential neighborhoods.

The law creates standards for the design of telecommunications facilities and a priority list for their placement.  The highest preference is given to facilities placed on existing towers and structures on municipal properties and facilities, and in public rights-of-way adjacent to commercially- and industrially-zoned areas.  The next highest preference is given to existing privately-owned structures on commercially- and industrially-zoned properties, and then to existing privately-owned structures on residentially-zoned properties.  Facilities located in public rights-of-way adjacent to residentially-zoned areas are less desirable, with facilities located on new towers in residential areas being the least desirable.  To minimize the number of new facilities, the law also mandates collocation of equipment whenever possible.  It requires an applicant to demonstrate that no suitable existing structures or facilities are available for collocation within the same geographic area as the proposed facility.

In an effort to mitigate the visual impact that telecommunications facilities can have on surrounding areas, the Town’s new telecommunications law requires that all facilities adhere to certain general aesthetic requirements.  For instance, all new facilities, including supporting electrical and mechanical components, must be of a neutral color or such other color as the reviewing board may require.  They must be constructed, to the extent practicable, using materials, colors, and textures, so that they blend into the natural setting and surrounding buildings.  Any ground-mounted equipment must screened with a suitable fence and/or landscaping to maintain the aesthetic quality of the surrounding community.

The law also contains requirements that are specific to small cell nodes that are to be placed on utility poles located in, or within 100 feet of, a residential zoning district to minimize their visual and noise impacts on the surrounding area.  All equipment attached to utility poles, must be painted a solid, flat color to match the color of the pole.  In the event there is no existing utility pole or alternative structure in the area, the applicant must install the equipment within a stealth pole.  A stealth pole is a structure that allows all antennas and related equipment to be fully contained so that they are not visible.

Areas within the Town that are designated as “Hamlet Centers” and “Sensitive Locations” also have specific locational aesthetic requirements.   For instance, in Hamlet Centers, the law requires that all facilities be constructed and installed on either an existing tower or the rooftop of a commercial building setback so that they are not visible from street level.  Moreover, whenever technologically feasible, the facilities must be placed within existing architectural features, such as steeples, cupolas, bell towers or similar structures.  Where equipment is proposed to be installed in or adjacent to a Sensitive Location, the reviewing board may direct that it be installed within a stealth pole.

Huntington’s new law is not limited to the regulation of small cell nodes.  It also updates and replaces the Town’s previous telecommunications law that focused on the regulation of conventional towers and other macro sites.

As wireless service providers seek to rapidly expand their 5G networks, unduly burdensome regulations that interfere with their ability to provide upgraded technologies are likely to be met with legal challenges.  With limited application to date, only time will tell whether Huntington’s new law complies with the FCC Order.  Many Long Island communities will be watching closely to see how the local telecommunications industry reacts to the law.

On March 2, 2021 New York’s Office of Renewable Energy Siting (“ORES”) issued final regulations governing the siting of major renewable energy facilities pursuant to obligations established by the Accelerated Renewable Energy Growth and Community Benefit Act (the “Act”).  The regulations serve as a tool to achieve the climate change targets established by the Climate Leadership and Community Protection Act (“CLCPA”) and other clean energy goals and mandates.  The Act streamlines and de-couples the siting, permitting and development process of large-scale renewable (“LSR”) energy projects from the cumbersome and time-intensive requirements of Article 10.  Prior to promulgation of the Act, Article 10 provided the siting and permitting requirements for all major energy projects in NY, including LSR projects.

The finalized regulations, Title 19 of NYCRR Part 900, implement a number of conceptual changes established by the Act to improve the siting and permitting efficiency of LSR projects.

As documented in the title of the Act, the goal is to accelerate renewable energy growth.  ORES attacked the goal by creating a degree of certainty for LSR developers.  The Act and the regulations establish a framework of codified time periods and a formulaic process that LSR developers may rely on at the outset of a project, allowing LSR developers to set benchmarks and milestones at the project planning phase and to identify and leverage efficiencies.

Through the Act, the regulations (among other things):

  • establish uniform permit standards and conditions for specific classes of renewables,
  • reduce pre-application notice periods and prescribe review and response times to developer submissions,
  • limit issues subject to adjudication that arise from public comment, and
  • authorize ORES to evaluate local laws that unreasonably burden the State’s goal of achieving CLCPA targets and the environmental benefits of the LSR project, and where appropriate, waive such requirements.

The aggressive changes are intended to maximize efficiencies in the application process as well as impose deadlines on ORES final determinations. Pursuant to the Act and its implementing regulations, final ORES decisions must be issued within one-year from deeming an application complete. That timeframe is cut in half for an LSR project proposed on an existing or abandoned commercial or industrial site.  In contrast, under the Article 10 process, approvals often extended multiple-years.

While the Act and the regulations represent meaningful change to the siting process and deliver tools to achieve state-based climate change objectives, the permitting, siting and ultimate development of an LSR project remains a heavy lift.  The application process includes a robust and thorough scope.   A number of the environmental evaluations, studies and assessments remain part of the siting process, including jurisdictional wetlands, endangered species, cultural resources, among many others.  Additionally, requirements to establish funding for public input and intervenors of a potential LSR development remain an applicant obligation.  Your Farrell Fritz team of land use, environmental and municipal attorneys and professionals are your local resource to provide counsel through the LSR energy project process.